§ 157.108  WIRELESS TELECOMMUNICATIONS FACILITIES.
   (A)   Purpose and intent. The Telecommunications Act of 1996 (codified at scattered setcions of 47 U.S.C.) affirmed the county’s authority concerning the placement, construction, and modification of wireless telecommunications facilities. The Board of Supervisors finds that wireless telecommunications facilities may cause a unique impact to the health, safety, public welfare, and environment of the county and its inhabitants. The county also recognizes that facilitating the development of wireless service technology can be an economic development asset to the county and of significant benefit to the county and its residents. In order to ensure that the placement, construction, or modification of wireless telecommunications facilities is consistent with the county’s land use policies, the county is adopting a single, comprehensive, wireless telecommunications facilities application and permit process. It is the purpose and intent of these regulations to minimize the negative impact of wireless telecommunications facilities, establish a fair and efficient process for review and approval of applications, assure an integrated, comprehensive review of environmental impacts of such facilities, and protect the health, safety, and welfare of the county.
   (B)   Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
      ACCESSORY FACILITY, WIRELESS. An accessory facility serving or being used in conjunction with wireless telecommunications facilities, and located on the same property or lot as the wireless telecommunications facilities including, but not limited to, utility or transmission equipment storage sheds or cabinets.
      ANTENNA. A system of electrical conductors that transmit or receive electromagnetic waves or radio frequency signals. Such waves shall include, but not be limited to, radio, television, cellular, paging, personal telecommunications services (PCS), and microwave telecommunications.
      BOARD. The Richmond County Board of Supervisors.
      COLLOCATION. The use of the same telecommunications tower or structure to carry two or more antennas for the provision of wireless services by two or more persons or entities.
      COMMERCIAL IMPRACTICABILITY OR COMMERCIALLY IMPRACTICABLE. The inability to perform an act on terms that are reasonable in commerce. The inability to achieve a satisfactory financial return on investment or profit, standing alone, shall not be considered COMMERCIAL IMPRACTICABILITY and shall not render an act or the terms of an agreement COMMERCIALLY IMPRACTICABLE.
      COMMONWEALTH. The Commonwealth of Virginia.
      COMPLETED APPLICATION. In relation to all aspects and components of this section, an application that contains all information and/or data necessary to enable the Board to evaluate the merits of the application, and to make an informed decision with respect to the effect and impact of wireless telecommunications facilities on the county in the context of the permitted land use for the particular location requested.
      DIRECT-TO-HOME SATELLITE SERVICES, DIRECT BROADCAST SERVICE, or DBS. Programming transmitted or broadcast by satellite directly to subscribers’ premises without the use of ground receiving equipment, except at the subscribers’ premises or in the uplink process to the satellite.
      EPA. The State and/or Federal Environmental Protection Agency or its duly assigned successor agency.
      FAA. The Federal Aviation Administration, or its duly designated and authorized successor agency.
      FCC. The Federal Communications Commission, or its duly designated and authorized successor agency.
      FREESTANDING TOWER. A tower that is not supported by guy-wires and ground anchors or other means of attached or external support.
      HEIGHT, TOWER. The distance measured from the preexisting grade level to the highest point on the tower or structure, even if said highest point is an antenna.
      NIER. Nonionizing Electromagnetic Radiation.
      PERSONAL WIRELESS FACILITY. See definition for WIRELESS TELECOMMUNICATIONS FACILITIES.
      PERSONAL WIRELESS SERVICES, PWS, PERSONAL TELECOMMUNICATIONS SERVICE, or PCS. Shall have the same meaning as defined and used in the 1996 Telecommunications Act.
      TELECOMMUNICATION SITE. See definition for WIRELESS TELECOMMUNICATIONS FACILITIES.
      TELECOMMUNICATIONS. The transmission and reception of audio, video, data, and other information by wire, radio frequency, light, and other electronic or electromagnetic systems.
      TELECOMMUNICATIONS STRUCTURE. A structure used in the provision of services described in the definition of WIRELESS TELECOMMUNICATIONS FACILITIES.
      TEMPORARY. In relation to all aspects and components of this section, something intended to, or that does, exist for fewer than 90 days.
      WIRELESS TELECOMMUNICATIONS FACILITIES, TELECOMMUNICATIONS TOWER, TELECOMMUNICATIONS SITE, or PERSONAL WIRELESS FACILITY. A structure, facility, or location designed, or intended to be used as, or used to support, antennas. It includes without limit, freestanding towers, guyed towers, monopoles, and similar structures that employ camouflage technology including, but not limited to, structures such as a multistory building, church steeple, silo, water tower, sign, or other similar structures intended to mitigate the visual impact of an antenna or the functional equivalent of such. It is a structure intended for transmitting and/or receiving radio, television, cellular, paging, 911, personal telecommunications services, commercial satellite services, or microwave telecommunications, but excluding those used exclusively for the county’s fire, police, and other dispatch telecommunications, or exclusively for private radio and television reception and private citizen’s bands, amateur radio, and other similar telecommunications.
   (C)   Overall policy and desired goals for special exception permits for wireless telecommunications facilities. In order to ensure that the placement, construction, and modification of wireless telecommunications facilities protects the county’s health, safety, public welfare, environmental features, and other aspects of the quality of life specifically listed elsewhere in this chapter, the County Board hereby adopts an overall policy with respect to a special exception permit for wireless telecommunications facilities for the express purpose of achieving the following goals:
      (1)   Implementing an application process for person(s) seeking a special exception permit for wireless telecommunications facilities;
      (2)   Establishing a policy for examining an application for and issuing a special exception permit for wireless telecommunications facilities that is both fair and consistent;
      (3)   Establishing reasonable time frames for granting or not granting a special exception permit for wireless telecommunications facilities, or recertifying or not recertifying, or revoking the special exception permit granted under this chapter;
      (4)   Promoting and encouraging, wherever possible, the sharing and/or collocation of wireless telecommunications facilities among service providers; and
      (5)   Promoting and encouraging, wherever possible, the placement, height, and quantity of wireless telecommunications facilities in such a manner as to minimize adverse aesthetic impacts to the land, property, buildings, and other facilities adjacent to, surrounding, and in generally the same area as the requested location of such wireless telecommunications facilities.
   (D)   Special exception permit application and other requirements.
      (1)   All applicants for a special exception permit for wireless telecommunications facilities or any modification of such facility shall comply with the requirements set forth in this section. The Board is the officially designated agency or body of the community to whom applications for a special exception permit for wireless telecommunications facilities must be made, and that is authorized to review, analyze, evaluate and make decisions with respect to granting or not granting, recertifying or not recertifying, or revoking special exception permits for wireless telecommunications facilities. The Board may at its discretion delegate or designate other official agencies of the county to accept, review, analyze, evaluate, and make recommendations to the Board with respect to the granting or not granting, recertifying or not recertifying or revoking special exception permits for wireless telecommunications facilities.
      (2)   An application for a special exception permit for wireless telecommunications facilities shall be signed on behalf of the applicant by the person preparing the same and with knowledge of the contents and representations made therein and attesting to the truth and completeness of the information. The landowner, if different than the applicant, shall also sign the application. At the discretion of the Board, any false or misleading statement in the application may subject the applicant to denial of the application without further consideration or opportunity for correction.
      (3)   Applications not meeting the requirements stated herein, or which are otherwise incomplete, may be rejected by the Board.
      (4)   The applicant shall include a statement in writing:
         (a)   The applicant’s proposed wireless telecommunications facilities shall be maintained in a safe manner, and in compliance with all conditions of the special exception permit, without exception, unless specifically granted relief by the Board in writing, as well as all applicable and permissible local codes, ordinances, and regulations, including any and all applicable county, state, and federal laws, rules, and regulations; and
         (b)   The construction of the wireless telecommunications facilities is legally permissible including, but not limited to, the fact that the applicant is authorized to do business in the state.
      (5)   No wireless telecommunications facilities shall be installed or constructed until the site plan is reviewed and approved by the Board, and the special exception permit has been issued.
      (6)   All applications for the construction or installation of new wireless telecommunications facilities shall be accompanied by a report containing the information hereinafter set forth. The report shall be signed by a licensed professional engineer registered in the state. Where this section calls for certification, such certification shall be by a qualified professional engineer acceptable to the county, licensed in the state. The application shall include, in addition to the other requirements for the special exception permit, the following information:
         (a)   Documentation that demonstrates the need for the wireless telecommunications facility to provide service primarily within the county;
         (b)   Name, address, and phone number of the person preparing the report;
         (c)   Name, address, and phone number of the property owner, operator, and applicant, to include the legal form of the applicant;
         (d)   Postal address and tax map parcel number of the property;
         (e)   Zoning district or designation in which the property is situated;
         (f)   Size of the property stated both in square feet and lot line dimensions, and a diagram showing the location of all lot lines;
         (g)   Location of nearest residential structure;
         (h)   Location of nearest habitable structure;
         (i)   Location, size, and height of all structures on the property which is the subject of the application;
         (j)   Location, size, and height of all proposed and existing antenna and all appurtenant structures;
         (k)   Type, locations, and dimensions of all proposed and existing landscaping and fencing;
         (l)   The number, type, and design of the telecommunications tower(s) antenna(s) proposed and the basis for the calculations of the telecommunications tower’s capacity to accommodate multiple users;
         (m)   The make, model, and manufacturer of the tower and antenna(s);
         (n)   A description of the proposed tower and antenna(s) and all related fixtures, structures, appurtenances, and apparatus, including height above preexisting grade, materials, color, and lighting;
         (o)   The frequency, modulation, and class of service of radio or other transmitting equipment;
         (p)   Transmission and maximum effective radiated power of the antenna(s);
         (q)   Direction of maximum lobes and associated radiation of the antenna(s);
         (r)   Certification that NIER levels at the proposed site are within the threshold levels adopted by the FCC;
         (s)   Certification that the proposed antenna(s) will not cause interference with existing telecommunications devices, though the certifying engineer need not be approved by the county;
         (t)   A copy of the FCC license applicable for the use of wireless telecommunications facilities;
         (u)   Certification that a topographic and geomorphologic study and analysis has been conducted, and that taking into account the subsurface and substrata, and the proposed drainage plan, that the site is adequate to assure the stability of the proposed wireless telecommunications facilities on the proposed site, though the certifying engineer need not be approved by the county;
         (v)   Propagation studies of the proposed site and all adjoining planned, proposed, in-service, or existing sites; and
         (w)   Applicant shall disclose in writing any agreement in existence prior to submission of the application that would limit or preclude the ability of the applicant to share any new telecommunication tower that it constructs.
      (7)   In the case of a new telecommunications tower, the applicant shall be required to submit a written report demonstrating its efforts to secure shared use of existing telecommunications tower(s) or use of existing buildings or other structures within the county. Copies of written requests and responses for shared use shall be provided to the Board.
      (8)   The applicant shall furnish written certification that the telecommunications facility, foundation, and attachments are designed and will be constructed to meet all local, county, state, and federal structural requirements for loads, including wind and ice loads.
      (9)   The applicant shall furnish written certification that the wireless telecommunications facilities will be effectively grounded and bonded so as to protect persons and property and installed with appropriate surge protectors.
      (10)   The applicant shall furnish a visual impact assessment which shall include:
         (a)   A zone of visibility map which shall be provided in order to determine locations where the tower may be seen;
         (b)   Pictorial representations of before and after views from key viewpoints both inside and outside of the county including, but not limited to, state highways and other major roads; state and local parks; other public lands; historic districts; preserves and historic sites normally open to the public; and from any other location where the site is visible to a large number of visitors, travelers, or residents. Guidance will be provided, concerning the appropriate key sites at a pre-application meeting; and
         (c)   An assessment of the visual impact of the tower base, guy-wires, and accessory buildings from abutting and adjacent properties and streets.
      (11)   Any and all representations made by the applicant to the Board, on the record, during the application process, whether written or verbal, shall be deemed a part of the application and may be relied upon in good faith by the Board.
      (12)   The applicant shall, in a manner approved by the Board, demonstrate and provide in writing and/or by drawing how it shall effectively screen from view its proposed wireless telecommunications facilities base and all related facilities and structures.
      (13)   All utilities at a wireless telecommunications facilities site shall be installed underground and in compliance with all laws, ordinances, rules, and regulations of the county, including specifically, but not limited to, the National Electrical Safety Code and the National Electrical Code where appropriate. The Board may waive or vary the requirements of underground installation of utilities whenever, in the opinion of the Board, such variance or waiver shall not be detrimental to the health, safety, general welfare, and environment, including the visual and scenic characteristics of the area.
      (14)   All wireless telecommunications facilities shall contain a demonstration that the facility be sited so as to have the least adverse visual effect on the environment and its character, on existing vegetation, and on the residences in the area of the wireless telecommunications facilities sites.
      (15)   Both the wireless telecommunications facility and any and all accessory or associated facilities shall maximize use of building materials, colors, and textures designed to blend with the structure to which it may be affixed and/or to harmonize with the natural surroundings, this shall include the utilization of stealth or concealment technology as required by the county.
      (16)   At a telecommunications site, an access road, turnaround space, and parking shall be provided to assure adequate emergency and service access. Maximum use of existing roads, whether public or private, shall be made to the extent practicable. Road construction shall at all times minimize ground disturbance and vegetation cutting. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion.
      (17)   A person who holds a special exception permit for wireless telecommunications facilities shall construct, operate, maintain, repair, provide for removal of, modify, or restore the permitted wireless telecommunications facilities in strict compliance with all current applicable technical, safety, and safety-related codes adopted by the county, state, or United States including, but not limited to, the most recent editions of the National Electrical Safety Code and the National Electrical Code, as well as accepted and responsible workmanlike industry practices and recommended practices of the National Association of Tower Erectors. The codes referred to are codes that include, but are not limited to, construction, building, electrical, fire, safety, health, and land use codes. In the event of a conflict between or among any of the preceding the more stringent shall apply.
      (18)   A holder of a special exception permit granted under this chapter shall obtain, at its own expense, all permits and licenses required by applicable law, ordinance, rule, regulation, or code, and must maintain the same, in full force and effect, for as long as required by the county or other governmental entity or agency having jurisdiction over the applicant.
      (19)   An applicant shall submit to the County Planning Department the number of completed applications determined to be needed at the pre-application meeting.
      (20)   The applicant shall examine the feasibility of designing a proposed telecommunications tower to accommodate future demand for at least five additional commercial applications, for example, future collocations. The scope of this examination shall be determined by the Board. The telecommunications tower shall be structurally designed to accommodate at least five additional antenna arrays equal to those of the applicant, and located as close to the applicant’s antenna as possible without causing interference. This requirement may be waived, provided that the applicant, in writing, demonstrates that the provisions of future shared usage of the telecommunications tower is not technologically feasible, is commercially impracticable, or creates an unnecessary and unreasonable burden, based upon:
         (a)   The foreseeable number of FCC licenses available for the area;
         (b)   The kind of wireless telecommunications facilities site and structure proposed;
         (c)   The number of existing and potential licenses without wireless telecommunications facilities spaces/sites; and
         (d)   Available space on existing and approved telecommunications towers.
      (21)   The applicant shall submit to the Board a letter of intent committing the owner of the proposed new tower, and his or her successors in interest, to negotiate in good faith for shared use of the proposed tower by other telecommunications providers in the future. This letter shall be filed with the Board. Failure to abide by the conditions outlined in the letter may be grounds for revocation of the special exception permit. The letter shall commit the new tower owner and his or her successors in interest to:
         (a)   Respond within 60 days to a request for information from potential shared-use applicant;
         (b)   Negotiate in good faith concerning future requests for shared use of the new tower by other telecommunications providers; and
         (c)   Allow shared use of the new tower if another telecommunications provider agrees in writing to pay reasonable charges. The charges may include, but are not limited to, a pro rata share of the cost of site selection, planning, project administration, land costs, site design, construction, and maintenance financing, return on equity, less depreciation, and all of the costs of adapting the tower or equipment to accommodate a shared user without causing electromagnetic interference.
      (22)   Unless waived by the Board, there shall be a pre-application meeting. The purpose of the pre-application meeting will be to address issues that will help to expedite the review and permitting process. A pre-application meeting may also include a site visit if required. Costs of the county’s consultants to prepare for and attend the pre-application meeting will be borne by the applicant.
      (23)   The holder of a special exception permit shall notify the county of any intended modification of a wireless telecommunication facility and shall apply to the county to modify, relocate, or rebuild a wireless telecommunications facility.
      (24)   In order to better inform the public, in the case of a new telecommunication tower, the applicant shall, prior to the public hearing on the application, hold a balloon test as follows: applicant shall arrange to fly, or raise upon a temporary mast, a minimum of a three-foot diameter brightly colored balloon at the maximum height of the proposed new tower. The dates, (including a second date, in case of poor visibility on the initial date) times and location of this balloon test shall be advertised, by the applicant, at seven and 14 days in advance of the first test date in a newspaper with a general circulation in county and agreed to by the Board. The applicant shall inform the Board, in writing, of the dates and times of the test, at least 14 days in advance. The balloon shall be flown for at least four consecutive hours sometime between 7:00 a.m. and 4:00 p.m. of the dates chosen. The primary date shall be on a weekend, but the second date, in case of poor visibility on the initial date, may be on a weekday.
      (25)   The applicant will provide a written copy of an analysis, completed by a qualified individual or organization, to determine if the telecommunications tower or existing structure intended to support wireless facilities requires lighting under Federal Aviation Regulation Part 77. This requirement shall be for any new tower or for an existing structure or building where the application increases the height of the structure or building. If this analysis determines that the FAA must be contacted, then all filings with the FAA, all responses from the FAA, and any related correspondence shall be provided in a timely manner.
   (E)   Location of wireless telecommunications facilities.
      (1)   Applicants for wireless telecommunications facilities shall locate, site, and erect said wireless telecommunications facilities in accordance with the following priorities, division (E)(1)(a) below being the highest priority and division (E)(1)(d) below being the lowest priority:
         (a)   On existing telecommunications towers or other tall structures;
         (b)   Collocation on a site with existing wireless telecommunications facilities or structures;
         (c)   On properties owned by the county, the Town of Warsaw, and/or its agencies; and
         (d)   On other property in the county.
      (2)   If the proposed property site is not the highest priority listed above, then a detailed explanation must be provided as to why a site of a higher priority was not selected. The person seeking such an exception must satisfactorily demonstrate the reason or reasons why such a permit should be granted for the proposed site, and the hardship that would be incurred by the applicant if the permit were not granted for the proposed site.
      (3)   An applicant may not bypass sites of higher priority by stating the site presented is the only site leased or selected. An application shall address collocation as an option and if such option is not proposed, the applicant must explain why collocation is commercially or otherwise impracticable. Agreements between providers limiting or prohibiting collocation, shall not be a valid basis for any claim of commercial impracticability or hardship.
      (4)   Notwithstanding the above, the Board may approve any site located within an area in the above list of priorities, provided that the Board finds that the proposed site is in the best interest of the health, safety, and welfare of the county and its inhabitants.
      (5)   The applicant shall submit a written report demonstrating the applicant’s review of the above locations in order of priority, demonstrating the technological reason for the site selection. If the site selected is not the highest priority, then a detailed written explanation as to why sites of a higher priority were not selected shall be included with the application.
      (6)   The applicant shall, in writing, identify and disclose the number and locations of any additional sites that the applicant has been, is, or will be considering, reviewing or planning for wireless telecommunications facilities in the county, and all municipalities adjoining the county, for a two-year period following the date of the application.
      (7)   Notwithstanding that a potential site may be situated in an area of highest priority or highest available priority, the Board may disapprove an application for any of the following reasons:
         (a)   Conflict with safety and safety-related codes and requirements;
         (b)   Conflict with traffic needs or traffic laws, or definitive plans for changes in traffic flow or traffic laws;
         (c)   Conflict with the historic nature of a neighborhood or historical district;
         (d)   The use or construction of wireless telecommunications facilities which is contrary to an already stated purpose of a specific zoning or land use designation;
         (e)   The placement and location of wireless telecommunications facilities which would create an unacceptable risk, or the probability of such, to residents, the public, employees and agents of the county, or employees of the service provider or other service providers; or
         (f)   Conflicts with the provisions of this chapter.
   (F)   Shared use of wireless telecommunications facilities and other structures.
      (1)   Shared use of existing wireless telecommunications facilities shall be preferred by the county, as opposed to the proposed construction of a new telecommunications tower. Where such shared use is unavailable, location of antennas on other preexisting structures shall be considered and preferred. The applicant shall submit a comprehensive report inventorying existing towers and other appropriate structures within four miles of any proposed new tower site, unless the applicant can show that some other distance is more reasonable, and outlining opportunities for shared use of existing facilities and the use of other preexisting structures as a preferred alternative to new construction.
      (2)   An applicant intending to share use of an existing telecommunications tower or other structure shall be required to document the intent of the existing owner to share use. In the event of an application to share the use of an existing telecommunications tower or other structure does not increase the height or footprint of the telecommunications facility or structure, the Board shall process such application in accordance with § 157.060(B)(1). The applicant shall still be required to abide by all submission requirements of this section, unless such requirements are waived by the county for good cause shown.
      (3)   Such shared use shall consist only of the minimum antenna array technologically required to provide service within the county, to the extent practicable, unless good cause is shown.
   (G)   Height of telecommunications tower(s).
      (1)   The applicant shall submit documentation justifying to the Board the total height of any telecommunications tower, facility, and/or antenna and the basis therefor. Such justification shall be to provide service within the county, to the extent practicable, unless good cause is shown.
      (2)   Telecommunications towers shall be no higher than the minimum height necessary. Unless waived by the Board upon good cause shown, the maximum height shall be 140 feet, based on six collocated antenna arrays and an ambient tree height of 80 feet.
      (3)   The maximum height of any telecommunications tower and attached antennas constructed after the effective date of this chapter shall not exceed that which shall permit operation without artificial lighting of any kind, in accordance with municipal, county, state, and/or any federal statute, law, local law, ordinance, code, rule, or regulation.
   (H)   Visibility of wireless telecommunications facilities.
      (1)   Wireless telecommunications facilities shall not be artificially lighted or marked, except as required by federal regulation or this chapter.
      (2)   Telecommunications towers shall be of a galvanized finish, or painted with a rust-preventive paint of an appropriate color to harmonize with the surroundings as approved by the Board, and shall be maintained in accordance with the requirements of this chapter.
      (3)   If lighting is required, applicant shall provide a detailed plan for sufficient lighting of as unobtrusive and inoffensive an effect as is permissible under state and federal regulations, and an artist’s rendering or other visual representation showing the effect of light emanating from the site on neighboring habitable structures within 1,500 feet of all property lines of the parcel on which the wireless telecommunications facilities are located.
   (I)   Security of wireless telecommunications facilities. All wireless telecommunications facilities and antennas shall be located, fenced, or otherwise secured in a manner that prevents unauthorized access. Specifically, as follows:
      (1)   All antennas, towers, and other supporting structures, including guy-wires, shall be made inaccessible to individuals and constructed or shielded in such a manner that they cannot be climbed or run into; and
      (2)   Transmitters and telecommunications control points must be installed such that they are readily accessible only to persons authorized to operate or service them.
   (J)   Signage. Wireless telecommunications facilities shall contain a sign no larger than four square feet to provide adequate notification to persons in the immediate area of the presence of an antenna that has transmission capabilities. The sign shall contain the name(s) of the owner(s) and operator(s) of the antenna(s) as well as emergency phone number(s). The sign shall be on the equipment shelter or shed of the applicant and be visible from the access point of the site and must identify the equipment shelter of the applicant. The sign shall not be lighted unless the Board shall have allowed such lighting or unless such lighting is required by applicable provisions of this chapter. No other signage, including advertising, shall be permitted on any facilities, antennas, antenna-supporting structures, or antenna towers, unless required by ordinance.
   (K)   Lot size and setbacks. All proposed wireless telecommunications facilities shall be set back from abutting parcels, recorded rights-of-way, and road and street lines by the greater of the following distances: a distance equal to the height of the wireless telecommunications facility or the existing setback requirements of the underlying zoning district, whichever are greater. Any accessory facility shall be located so as to comply with the applicable minimum setback requirements for the property on which it is situated.
   (L)   Retention of expert assistance and reimbursement by applicant.
      (1)   The Board may hire any consultant and/or expert necessary to assist the Board in reviewing and evaluating the application, including the construction and modification of the site, once permitted, and any requests for recertification.
      (2)   An applicant shall deposit with the county funds sufficient to reimburse the county for all reasonable costs of consultant and expert evaluation and consultation to the Board in connection with the review of any application. The initial deposit shall be $8,500. These funds shall precede the pre-application meeting and the county will maintain a separate escrow account for all such funds. The county’s consultants/experts shall bill or invoice the county no more frequently than monthly for its services in reviewing the application and performing its duties. If at any time during the review process this escrow account has a balance less than $2,500, the applicant shall immediately, upon notification by the county, replenish said escrow account so that it has a balance of at least $5,000. Such additional escrow funds shall be deposited with the county before any further action or consideration is taken on the application. In the event that the amount held in escrow by the county is more than the amount of the actual billing or invoicing at the conclusion of the project, the difference shall be promptly refunded to the applicant.
      (3)   The total amount of the funds set forth in division (L)(2) above may vary with the scope and complexity of the project, the completeness of the application and other information as may be needed by the Board or its consultant/expert to complete the necessary review and analysis. Additional escrow funds, as reasonably required and requested by the county, shall be paid by the applicant.
   (M)   Exceptions from a special exception permit for wireless telecommunications facilities.
      (1)   No person shall be permitted to site, place, build, construct, or modify, or prepare any site for the placement or use of, wireless telecommunications facilities as of the effective date of this chapter without having first obtained a special exception permit for wireless telecommunications facilities. Notwithstanding anything to the contrary in this section, no special exception permit shall be required for those exceptions noted in the definition of wireless telecommunications facilities.
      (2)   New construction on existing wireless telecommunications facilities shall comply with the requirements of this chapter.
      (3)   All wireless telecommunications facilities existing on or before the effective date of this chapter shall be allowed to continue as they presently exist, provided however, that any modification to existing wireless telecommunications facilities must comply with this chapter.
   (N)   Public hearing and notification requirements.
      (1)   Prior to the approval of any application for a special exception permit for wireless telecommunications facilities, a public hearing shall be held by the Board in accordance with § 157.060(B)(2).
      (2)   The Board shall schedule the public hearing referred to in division (N)(1) above once it finds the application is complete. The Board, at any stage prior to issuing a special exception permit, may require such additional information, as it deems necessary.
      (3)   The above provisions notwithstanding, if the application is for collocating on an existing telecommunications facility or high structure, where no increase in the height or footprint of the tower or structure is required, no public hearing will be required prior to the approval of the application.
   (O)   Action on an application for a special exception permit for wireless telecommunications facilities.
      (1)   The Board will undertake a review of an application pursuant to this chapter in a timely fashion, and shall act within a reasonable period of time given the relative complexity of the application and the circumstances, with due regard for the public’s interest and need to be involved, and the applicant’s desire for a timely resolution.
      (2)   The Board may refer any application or part thereof to any advisory or other committee for a nonbinding recommendation.
      (3)   After the public hearing, and after formally considering the application, the Board may approve, approve with conditions, or deny a special exception permit. Its decision shall be in writing and shall be supported by substantial evidence contained in a written record. The burden of proof for the granting of the permit shall always be upon the applicant.
      (4)   If the Board approves the special exception permit for wireless telecommunications facilities, then the applicant shall be notified of such approval in writing within ten calendar days of the Board’s action, and the special exception permit shall be issued within 30 days after such approval.
      (5)   If the Board denies the special exception permit for wireless telecommunications facilities, then the applicant shall be notified of such denial in writing within ten calendar days of the Board’s action.
   (P)   Recertification of a special exception permit for wireless telecommunications facilities.
      (1)   At any time between 12 months and six months prior to the five-year anniversary date after the effect date of the special exception permit and all subsequent fifth anniversaries of the effective date of the original special exception permit for wireless telecommunications facilities, the holder of a special exception permit for such wireless telecommunication facilities shall submit a signed written request to the Board for recertification. In the written request for recertification, the holder of such special exception permit shall note the following:
         (a)   The name of the holder of the special exception permit for the wireless telecommunications facilities;
         (b)   If applicable, the number or title of the special exception permit;
         (c)   The date of the original granting of the special exception permit;
         (d)   Whether the wireless telecommunications facilities have been moved, relocated, rebuilt, or otherwise modified since the issuance of the special exception permit and, if so, in what manner;
         (e)   If the wireless telecommunications facilities have been moved, relocated, rebuilt, or otherwise modified, then whether the Board approved such action, and under what terms and conditions, and whether those terms and conditions were complied with;
         (f)   Any requests for waivers or relief of any kind whatsoever from the requirements of this chapter and any requirements for a special exception permit;
         (g)   The wireless telecommunications facilities are in compliance with the special exception permit and compliance with all applicable codes, ordinances, rules, and regulations and laws; and
         (h)   Recertification that the telecommunication tower and attachments both are designed and constructed as built and continue to meet all local, county, state, and federal structural requirements for loads, including wind and ice loads. Such recertification shall be by a qualified state licensed professional engineer, the cost of which shall be borne by the applicant.
      (2)   If, after review in accordance with § 157.060(B)(3), the Board determines that the permitted wireless telecommunications facilities are in compliance with the special exception permit and all applicable statutes, laws, local ordinances, codes, rules, and regulations, then the Board shall issue a recertification special exception permit for the wireless telecommunications facilities, which may include any new provisions or conditions that are mutually agreed upon, or required by applicable statutes, laws, local ordinances, codes, rules, and regulations. If, after such review, the Board determines that the permitted wireless telecommunications facilities are not in compliance with the special exception permit and all applicable statutes, laws, ordinances, codes, rules, and regulations, then the Board may refuse to issue a recertification special exception permit for the wireless telecommunications facilities, and in such event, such wireless telecommunications facilities shall not be used after the date that the applicant receives written notice of such decision by the Board. Any such decision shall be in writing and supported by substantial evidence contained in a written record.
      (3)   If the applicant has submitted all of the information requested by the Board and required by this chapter, and if the Board does not complete its review, as noted in division (P)(2) above, prior to the five-year anniversary date of the special exception permit, or subsequent fifth anniversaries, then the applicant for the permitted wireless telecommunications facilities shall receive an extension of the special exception permit for up to six months, in order for the Board to complete its review.
      (4)   If the holder of a special exception permit for wireless telecommunications facilities does not submit a request for recertification of such special exception permit within the time frame noted in division (P)(1) above, then such special exception permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special exception permit, or subsequent fifth anniversaries, unless the holder of the special exception permit adequately demonstrates to the Board that extenuating circumstances prevented a timely recertification request. If the Board agrees that there were legitimately extenuating circumstances, then the holder of the special exception permit may submit a late recertification request or application for a new special exception permit.
   (Q)   Extent and parameters of special exception permit for wireless telecommunications facilities. The extent and parameters of a special exception permit for wireless telecommunications facilities shall be as follows:
      (1)   Such special exception permit shall be nonexclusive;
      (2)   Such special exception permit shall not be assigned, transferred, or conveyed without the express prior written notification of the Board; and
      (3)   Such special exception permit may, following a hearing upon due prior notice to the applicant, be revoked, canceled, or terminated for a violation of the conditions and provisions of the special exception permit for wireless telecommunications facilities, or for a material violation of this chapter after prior written notice to the applicant and the holder of the special exception permit.
   (R)   Application fee.
      (1)   At the time that a person submits an application for a special exception permit for a new telecommunications tower, such person shall pay a nonrefundable application fee as determined by the Board of Supervisors to cover the administrative costs incurred by the county in processing the application. If the application is for collocating on an existing telecommunications facility or high structure, where no increase in the height or footprint of the telecommunications facility or structure is required, the nonrefundable fee shall be a reduced amount, as determined by the Board of Supervisors.
      (2)   No application fee is required in order recertify a special exception permit for wireless telecommunications facilities, unless there has been a modification of the wireless telecommunications facilities since the date of the issuance of the existing special exception permit for which the conditions of the special exception permit have not previously been modified. In the case of any modification, the fees provided in division (R)(1) above shall apply.
   (S)   Performance security. The applicant and the owner of record of any proposed wireless telecommunications facilities property site shall, at its cost and expense, be jointly required to execute and file with the county a bond, or other form of security acceptable to the county as to the type of security and the form and manner of execution, in an amount of at least $15,000 and with such sureties as are deemed sufficient by the Board to assure the faithful performance of the terms and conditions of this chapter and conditions of any special exception permit issued pursuant to this chapter. The full amount of the bond or security shall increase in value by 5% each year and shall remain in full force and effect throughout the term of the special exception permit and/or until the removal of the wireless telecommunications facilities, and any necessary site restoration is completed. The failure to pay any annual premium for the renewal of any such security shall be a violation of the provisions of the special exception permit and shall entitle the Board to revoke the special exception permit after prior written notice to the applicant and holder of the permit and after a hearing upon due prior notice to the applicant and holder of the special exception permit.
   (T)   Reservation of authority to inspect wireless telecommunications facilities. In order to verify that the holder of a special exception permit for wireless telecommunications facilities and any and all lessees, renters, and/or licensees of wireless telecommunications facilities, place and construct such facilities, including towers and antennas, in accordance with all applicable technical, safety, fire, building, and zoning codes, laws, ordinances, regulations, and other applicable requirements, the county may inspect all facets of said permit holder’s, renter’s, lessee’s or licensee’s placement, construction, modification, and maintenance of such facilities including, but not limited to, towers, antennas, and buildings or other structures constructed or located on the permitted site.
   (U)   Annual NIER certification. The holder of the special exception permit shall, annually, certify in writing to the county that NIER levels at the site are within the threshold levels adopted by the FCC. The certifying engineer must be licensed to practice engineering in the state.
   (V)   Liability insurance.
      (1)   A holder of a special exception permit for wireless telecommunications facilities shall secure and at all times maintain public liability insurance for personal injuries, death, and property damage, and umbrella insurance coverage, for the duration of the special exception permit in amounts as set forth below:
         (a)   Commercial general liability covering personal injuries, death, and property damage: $1,000,000 per occurrence/$2,000,000 aggregate;
         (b)   Automobile coverage: $1,000,000 per occurrence/$2,000,000 aggregate; and
         (c)   Workers compensation and disability: statutory amounts.
      (2)   The commercial general liability insurance policy shall specifically include the county and its officers, boards, employees, committee members, attorneys, agents, and consultants as additional named insureds.
      (3)   The insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the state and with a Best’s rating of at least A.
      (4)   The insurance policies shall contain an endorsement obligating the insurance company to furnish the county with at least 30 days’ prior written notice in advance of the cancellation of the insurance.
      (5)   Renewal or replacement policies or certificates shall be delivered to the county at least 15 days before the expiration of the insurance that such policies are to renew or replace.
      (6)   Before construction of a permitted wireless telecommunications facilities is initiated, but in no case later than 15 days after the grant of the special exception permit, the holder of the special exception permit shall deliver to the county a copy of each of the policies or certificates representing the insurance in the required amounts.
   (W)   Indemnification.
      (1)   Any application for wireless telecommunication facilities that is proposed for county property, pursuant to this chapter, shall contain a provision with respect to indemnification. Such provision shall require the applicant, to the extent permitted by this chapter, to at all times defend, indemnify, protect, save, hold harmless, and exempt the county, and its officers, boards, employees, committee members, attorneys, agents, and consultants from any and all penalties, damages, costs, or charges arising out of any and all claims, suits, demands, causes of action, or award of damages, whether compensatory or punitive, or expenses arising therefrom, either at ordinance or in equity, which might arise out of, or are caused by, the placement, construction, erection, modification, location, products performance, use, operation, maintenance, repair, installation, replacement, removal, or restoration of said facility, excepting, however, any portion of such claims, suits, demands, causes of action or award of damages as may be attributable to the negligent or intentional acts or omissions of the county, or its servants or agents. With respect to the penalties, damages, or charges referenced herein, reasonable attorneys’ fees, consultants’ fees, and expert witness fees are included in those costs that are recoverable by the county.
      (2)   Notwithstanding the requirements noted in division (W)(1) above, an indemnification provision will not be required in those instances where the county itself applies for and secures a special exception permit for wireless telecommunications facilities.
   (X)   Default and/or revocation.
      (1)   If wireless telecommunications facilities are repaired, rebuilt, placed, moved, relocated, modified, or maintained in a way that is inconsistent or not in compliance with the provisions of this chapter or of the special exception permit, then the Board shall notify the holder of the special exception permit in writing of such violation. Such notice shall specify the nature of the violation or noncompliance and that the violations must be corrected within seven days of the date of the postmark of the notice, or of the date of personal service of the notice, whichever is earlier. Notwithstanding anything to the contrary in this division (X)(1) or any other section of this chapter, if the violation causes, creates, or presents an imminent danger or threat to the health or safety of lives or property, the Board may, at its sole discretion, order the violation remedied within 24 hours.
      (2)   If, within the period set forth in division (X)(1) above, the wireless telecommunications facilities are not brought into compliance with the provisions of this chapter, or of the special exception permit, or substantial steps are not taken in order to bring the affected wireless telecommunications facilities into compliance, then the Board may revoke such special exception permit for wireless telecommunications facilities, and shall notify the holder of the special exception permit within 48 hours of such action.
   (Y)   Removal of wireless telecommunications facilities.
      (1)   Under the following circumstances, the Board may determine that the health, safety, and welfare interests of the county warrant and require the removal of wireless telecommunications facilities:
         (a)   Wireless telecommunications facilities with a permit have been abandoned (i.e., not used as wireless telecommunications facilities) for a period exceeding 12 consecutive months;
         (b)   Permitted wireless telecommunications facilities fall into such a state of disrepair that it creates a health or safety hazard; and/or
         (c)   Wireless telecommunications facilities have been located, constructed, or modified without first obtaining, or in a manner not authorized by, the required special exception permit, or any other necessary authorization.
      (2)   If the Board makes such a determination as noted in division (Y)(1) above, then the Board shall notify the holder of the special exception permit for the wireless telecommunications facilities within 48 hours that said wireless telecommunications facilities are to be removed. The Board may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.
      (3)   The holder of the special exception permit, or its successors or assigns, shall dismantle and remove such wireless telecommunications facilities, and all associated structures and facilities, from the site and restore the site to as close to its original condition as is possible, such restoration being limited only by physical or commercial impracticability, within 90 days of receipt of written notice from the Board. However, if the owner of the property upon which the wireless telecommunications facilities are located wishes to retain any access roadway to the wireless telecommunications facilities, the owner may do so with the approval of the Board.
      (4)   If wireless telecommunications facilities are not removed or substantial progress has not been made to remove the wireless telecommunications facilities within 90 days after the permit holder has received notice, then the Board may order officials or representatives of the county to remove the wireless telecommunications facilities at the sole expense of the owner or special exception permit holder.
      (5)   If the county removes, or causes to be removed, wireless telecommunications facilities, and the owner of the wireless telecommunications facilities does not claim and remove it from the site to a lawful location within ten days, then the county may take steps to declare the wireless telecommunications facilities abandoned, and sell them and their components.
      (6)   Notwithstanding anything in this section to the contrary, the Board may approve a temporary use permit/agreement for the wireless telecommunications facilities, for no more 90 days, during which time a suitable plan for removal, conversion, or relocation of the affected wireless telecommunications facilities shall be developed by the holder of the special exception permit, subject to the approval of the Board, and an agreement to such plan shall be executed by the holder of the special exception permit and the county. If such a plan is not developed, approved, and executed within the 90-day time period, then the county may take possession of and dispose of the affected wireless telecommunications facilities in the manner provided in this section.
   (Z)   Relief. Any applicant desiring relief or exemption from any aspect or requirement of this section may request such from the Board at a pre-application meeting, provided that the relief or exemption is contained in the original application for either a special exception permit, or in the case of an existing or previously granted special exception permit a request for modification of its tower and/or facilities. Such relief may be temporary or permanent, partial or complete, at the sole discretion of the Board. However, the burden of proving the need for the requested relief or exemption is solely on the applicant to prove to the satisfaction of the Board. The applicant shall bear all costs of the Board or the county in considering the request and the relief shall not be transferable to a new or different holder of the permit or owner of the tower or facilities without the specific written permission of the Board. Such permission shall not be unreasonably withheld or delayed. No such relief or exemption shall be approved unless the applicant demonstrates by clear and convincing evidence that, if granted the relief or exemption will have no significant affect on the health, safety, and welfare of the county, its residents, and other service providers.
   (AA)   Adherence to state and/or federal rules and regulations.
      (1)   To the extent that the holder of a special exception permit for wireless telecommunications facilities has not received relief, or is otherwise exempt, from appropriate state and/or federal agency rules or regulations, then the holder of such a special exception permit shall adhere to, and comply with, all applicable rules, regulations, standards, and provisions of any state or federal agency including, but not limited to, the FAA and the FCC. Specifically included in this requirement are any rules and regulations regarding height, lighting, security, electrical, and RF emission standards.
      (2)   To the extent that applicable rules, regulations, standards, and provisions of any state or federal agency including, but not limited to, the FAA and the FCC, and specifically including any rules and regulations regarding height, lighting, and security are changed and/or are modified during the duration of a special exception permit for wireless telecommunications facilities, then the holder of such a special exception permit shall conform the permitted wireless telecommunications facilities to the applicable changed and/or modified rule, regulation, standard, or provision within a maximum of 24 months of the effective date of the applicable changed and/or modified rule, regulation, standard, or provision, or sooner as may be required by the issuing entity.
(Ord. passed 11-9-1995; Ord. passed 11-8-2001)  Penalty, see § 157.999